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One Step Closer to the Unitary Patent System

The new Unified Patent Court and unitary patent system to be created by the UPC Agreement has taken a big step forward with ratification by the UK in April 2018. But even though the UPC Agreement is outside the European Community agreement, and thus potentially independent of the Brexit negotiations, how the UPC would apply in the UK remains uncertain.

The minimum number of ratifications (13) required by the UPC Agreement has been achieved, but the UPC Agreement also requires that each of France, Germany and the UK has ratified the Agreement before it can come into force. Both France and the UK have now done so, but Germany is still in flux.

Although the German government appears to be ready to ratify, ratification has been delayed by a legal challenge in Germany’s Federal Constitutional Court. A procedural decision is expected later this year (2018), and the Court is expected either to dismiss the challenge or schedule a full hearing (which would probably occur sometime in 2019).

If the constitutional challenge is overcome in Germany, whether it happens this year or sometime further in the future, Germany may choose to time its ratification to ensure that the new court becomes operational only after post-Brexit arrangements have been agreed upon. Thus, final implementation of the UPC may still be delayed an indefinite time, and the UK's future relationship with the Unified Patent Court is still a matter of negotiation with its European partners.